Judge: Manning must face charge that his leaks aided enemy

By Michael Doyle - McClatchy Washington Bureau

July 19, 2013

(MCT) WASHINGTON — A military judge on Thursday refused to dismiss a far-reaching charge that Army Pfc. Bradley Manning aided the enemy when he gave hundreds of thousands of government documents to WikiLeaks, an online repository of secrets from the U.S. government as well as other nations and corporations.

In a major victory for the Pentagon and a defeat for Manning, Army Col. Denise Lind rejected a defense motion that she dismiss the most serious of multiple charges filed against Manning. The aiding-the-enemy charge carries the possibility of life in prison; in theory, prosecutors could have asked for the death penalty.

Lind cited Manning’s training as an intelligence analyst, as well as the sheer volume of the 700,000 documents he has acknowledged providing WikiLeaks, as the basis for reasoning that he knew the leak could aid al-Qaida.

“They’re not commonly granted,” Eugene R. Fidell, who teaches military law at Yale Law School, said in an interview about motions to dismiss, while adding that “as a matter of law, I don’t know if her ruling will survive.”

Lind’s highly anticipated ruling, delivered in a Fort Meade, Md., courtroom outside of Washington, leaves intact 19 other criminal counts. It does not necessarily mean she ultimately will find Manning guilty on the aiding-the-enemy charge, as the motion to dismiss faces a relatively high legal hurdle.

Manning already has agreed to plead guilty to some of the additional charges, which can bring a sentence of up to 20 years at the Kansas military prison formally known as U.S. Disciplinary Barracks Leavenworth.

The aiding-the-enemy charge, though, has been the most consequential — and controversial — of the prosecution’s case against the 25-year-old Oklahoma native. For Manning, it has raised the question of whether he’ll ever exit prison as a free man. For lawyers, journalists and potential whistleblowers, the case has underscored how leakers and reporters alike have become legally vulnerable under the Obama administration’s aggressive anti-leak campaign.

“The sole issue that the government really is advancing is, if you give information to any news organization that is going to publish that information and put it on the Internet, now you have actual knowledge that the enemy is going to gain access to that,” defense attorney David Coombs argued in court on Monday.

To prove the aiding-the-enemy charge, prosecutors have the burden of showing Manning actually knew the documents he provided WikiLeaks would, even if indirectly, help terrorist organizations such as al-Qaida.

Under Article 104 of the Uniform Code of Military Justice, someone can be convicted for aiding the enemy by conveying intelligence “by direct or indirect means.” When it comes to communicating with the enemy, Article 104 adds, the “intent, content and method of communication are immaterial.”

Throughout the trial that began June 3, Coombs has consistently called this charge both unfounded and dangerous.

“The government has nothing, but perhaps an argument, that Pfc. Manning might have been negligent in giving information to WikiLeaks, and that the enemy might have been able to access it,” Coombs said Monday. “But there has been no evidence offered by the government to show actual knowledge.”

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A publicly funded stenographer, coordinated through the Freedom of the Press Foundation, has been providing informal but complete transcripts of the Manning court-martial for those unable to gain access to the tightly secured Fort Meade facility. Fort Meade is also the location of the National Security Agency, which scoops up signals and communications worldwide.

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Military prosecutors have cited circumstantial evidence to support the assertion that Manning knew he was aiding the enemy.

“It would be nice if we had a videotaped confession saying that, ‘I knew by leaking information to WikiLeaks that it would go (to al-Qaida),’’’ Army Capt. Angel Overgaard said Monday. “We don’t have that in this case, (but) the government offered a mountain of circumstantial evidence.”

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Overgaard cited Manning’s training, which he said included the facts that al Qaida “used the Internet to get (military) information” and that “the enemy was looking for this specific type of information.” Pressed by Lind, Overgaard added that it wouldn’t make any difference to prosecutors whether Manning had provided the secret documents to WikiLeaks or to a conventional news organization.

“Pfc. Manning is distinct from an infantryman or a truck driver because he had all the training,” Overgaard said. “And this was his job. He knew exactly what he was doing. He knew exactly the consequences of his actions.”

The defense had countered with testimony from some of Manning’s intelligence trainers, one of whom said he had never even heard of WikiLeaks prior to Manning’s arrest, and another who said trainees had only been warned about social networking sites like Facebook.

Under Rule 917 of the Uniform Code of Military Justice, a judge may grant a motion to dismiss “only in the absence of some evidence which ... could reasonably tend to establish” the elements of the crime, with the evidence viewed “in the light most favorable to the prosecution.”

Fidell of Yale Law School said Lind’s ruling gives an “appealable issue” to the defense if Manning is convicted, potentially throwing his final sentence into doubt.

Closing arguments have yet to be made. Lind will decide the case herself, as Manning elected not to ask for a military jury.

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